Avoiding Lawsuits under the ADA
JD Supra
As retailers enter the holiday season amid a period of increased compliance lawsuits related to the Americans with Disabilities Act (ADA), we offer some timely ways to steer clear of potential ADA pitfalls.
Title III of the ADA generally requires that “places of public accommodation” provide access for those with disabilities to the goods and services they offer. This requirement applies not only to physical spaces but can apply to the virtual world as well—both interactive kiosks and websites.
Infertility Issues in the Workplace
Lexology
Protections for pregnant employees has significantly increased in the wake of the Equal Employment Opportunity Commission’s Enforcement Guidance on Pregnancy Discrimination (updated June 25, 2015) and the United States Supreme Court decision in Young v. United Parcel Services, Inc., — U.S. —, 135 S.Ct. 1338 (2015). But what about employees who are not yet pregnant but are instead struggling to conceive a child? Employees turning to assisted reproductive technology (“ART”) may require time away from work for things such as diagnostic testing, blood draws, ultrasounds and doctor appointments, as well as for other, more involved medical or surgical procedures.
Employers are increasingly seeking guidance regarding the legal requirements for employees seeking time off for infertility treatment or ART. Unlike pregnancy, infertility affects both men and women. While the law is still developing in this area, there are numerous statutes that need to be considered when deciding whether an employee may be entitled to time off for reasons relating to infertility treatments.
Disabilities group sues state over institutions
NWCN.com
A lawsuit filed Tuesday seeks to force Washington state to speed up the transition of adults with developmental disabilities from institutional settings to homes in the community.
Disabled woman alleges catering company failed to follow law
The Louisiana Record
A Washington Parish woman is suing a catering company and its owner, alleging disability discrimination.
Lynnette Bech filed a lawsuit July 15 in U.S. District Court for the Eastern District of Louisiana against Terry Lynn's Cafe & Creative Catering LLC and Barbara Cresap Starling, alleging disability discrimination in violating Title III of the Americans With Disabilities Act.
According to the complaint, if Bech tries to visit the defendants' property at 1960 First St., Slidell, she would experience serious difficulties accessing the goods and utilizing the services offered therein due to architectural barriers.
The plaintiff alleges the defendants failed to provide a wheelchair accessible entrance, failed to remove the barriers to access to the property and failed to adopt any alternatives to barrier removal.
Bech seeks a trial by jury, declaration the defendants are in violation of the ADA, an order for defendants to make the property accessible to individuals with mobility disability, attorney fees, legal expenses and such other relief the court deems proper. She is represented by attorneys Andrew D. Bizer, Garret S. DeReus and Marc P. Florman of The Bizer Law Firm in New Orleans.
U.S. District Court for the Eastern District of Louisiana Case number 216cv12815
Violations found at all LA Unified preschools for disabled children surveyed by independent monitor
LA School Report
The independent monitor for special education at LA Unified found violations at all 13 Preschool for All Learners (PALs) programs visited, according to a new report.
LA Unified has been under federal oversight since 1996 as a result of a class-action lawsuit that accused it of non-compliance with special education laws. As part of the settlement, an independent monitor was appointed in 2003 to oversee the district’s compliance with what is known as the Modified Consent Decree.
In Part 2 of an annual report that was first issued in November, Independent Monitor David Rostetter noted that at all 13 PALs preschools he visited, violations were found that included a lack of changing tables, privacy screens, ventilation and running water, as well as “shared common problems indicative of systemic failures to ensure program accessibility and the health and safety of SWDs (students with disabilities).” PALs is the district’s preschool program that serves students with moderate to severe disabilities.
Advocate Moves Needle on Website Accessibility
Education Week
Every year, thousands of complaints flow into the office tasked with investigating disability discrimination for the U.S. Department of Education.
This year, Marcie Lipsitt, a special education advocate from Michigan, has been responsible for about 500 of those complaints—and counting.
Lipsitt's focus is on the websites of school districts and other educational institutions, which she says widely disregard the needs of users who are blind or visually impaired, or who cannot use a mouse to navigate a page. Other website problems she has spotted include videos with no captions, or text and background color combinations that are a strain for people with low vision.
Her letters have gotten results. In June, the Education Department's office for civil rights announced that it had entered into settlement agreements over website accessibility with schools, districts, and departments of education in seven states and in Guam.
All of those complaints originated with Lipsitt, who fires off at least a couple of letters a day from her home in Franklin, 20 miles outside Detroit.
"I have nothing to lose but time and sleep," said Lipsitt, who squeezes in the letters in addition to her work as a lay advocate, helping families with special education disputes.
But Lipsitt, who is not visually impaired, said this is about more than being a prolific gadfly.
The proposed regulations for the Every Student Succeeds Act say that, in many cases, placing information on a website is sufficient for states and districts to meet public reporting requirements. But what use is it to the public if that essential information can't be read by everyone? Lipsitt and other advocates want the regulations to state that if states and districts are allowed to use their websites as the equivalent of a town crier, then those sites should be usable for everyone.
"If those final regulations don't include web accessibility, then shame on everyone," Lipsitt said.
EEOC Issues Guidance Regarding Leave as an Accommodation Under the ADA
JD Supra
The U.S. Equal Employment Opportunity Commission (EEOC) recently issued a guidance to employers regarding an employer’s obligation under the Americans with Disabilities Act (ADA) to provide unpaid leave or extend a paid leave on an unpaid basis beyond its original term as a reasonable accommodation under the ADA, provided no undue hardship would result for the employer.
The EEOC clearly views providing unpaid leave as an accommodation to be a significant issue that may require employers to change their usual practices when needed. Specifically, the EEOC advises that if an employee’s condition constitutes a disability under the ADA, an employer’s usual policy of not providing leave, the employee’s ineligibility for leave on the basis of his or her employment status, length or employment or otherwise, or the exhaustion of all available leave, cannot justify a denial of providing unpaid leave, if the leave does not result in undue hardship for the employer.
The EEOC guidance provides that, in the event that all applicable leaves provided by the employer are inapplicable to an employee’s situation, the employer should engage in an interactive process with the employee so that the employer can determine whether it can provide additional leave as a reasonable accommodation without causing undue hardship. This process should center on the reasons the employee needs the leave, if the leave will be a block of time or on an intermittent basis, and when the need for the leave is expected to conclude.
The EEOC warns that maximum leave policies and policies requiring that employees be 100% healed or able to work without restriction before returning to work may conflict with the ADA’s reasonable accommodation requirements to provide leave or accommodations on return to work such as reassignment for an employee with a condition constituting a disability, unless the employer can show undue hardship.
The guidance suggests employers communicate with employees toward the end of a scheduled leave regarding the possibility of extending the leave if necessary. Instead of using a form letter informing the employee of the expected return date and possible termination for failure to return, employers should consider informing employees that if they need additional unpaid leave, they should request it as soon as possible so the employer can determine if they can grant an extension without experiencing undue hardship.
City's LinkNYC Kiosks Discriminate Against the Blind, Lawsuit Says
DNAinfo
If you're blind, it is impossible to call 911, get directions or access free Wi-Fi using the city's newly installed LinkNYC kiosks, according to a lawsuit filed by residents.
The kiosks — which are meant to be an alternative to pay phones and have been touted by Mayor Bill de Blasio for improving life for people with disabilities — lack basic requirements for use by vision-impaired New Yorkers, including not adding braille onto the keypad and failing to include tech-driven audio functions, the lawsuit states.
The city and Citybridge, which operates the kiosks, "failed to take the minimal and routine steps to make these tablets and other of the various services of LinkNYC accessible to blind New Yorkers," the National Federation of the Blind and three city residents wrote in a civil rights lawsuit filed in U.S. District Court on July 28.
Where to Build Housing for Disabled Seniors Living Independently
Builder Magazine
Accessible home features are on the upswing for a multitude of reasons (as BUILDER has outlined previously). Among those reasons is the invaluable convenience homes built with universal design concepts in mind offer to a huge cohort of the U.S. population: seniors (aged 65 and over) and people living with disabilities. Given their imminent need for accessibility, seniors and people with disabilities are a crucial target market that no builders should miss.